Saturday, March 27, 2010

Scalia's Own Logic

I've seen the light! After many years of believing that the U.S. Constitution should be made relevant to modern society, I've been converted by the arguments of Supreme Court Justice Antonin Scalia, whose brand of originalism (often called "strict construction") clearly and decisively settles all the issues of gun control.

True, the Second Amendment is a tad ambiguous. The phrase with which it begins does not fit with the last part: "A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed." That first phrase about "a well-regulated militia" only confuses things. The correct way to deal with it is to ignore it (as the current Scalia-led majority on the court happily does). That way, we get a little wiggle room to focus on the part that counts: "the right of the People to keep and bear arms shall not be infringed."

So there you are: By their very words the Founding Fathers plainly meant to protect the right of every person to own and bear muzzle-loading flintlock arms. But we true originalists logically cannot see any constitutional prohibition of governmental regulation of center-fire weapons, whether they be revolvers, assault rifles, automatic or pump shotguns, submachine guns, Glock automatics, or whatever. This truth will upset the arms industry, the drug gangs, prospective terrorists, the National Rifle Association and most gun nuts — and Justice Scalia himself, an avid hunter. But that's the inescapable deduction from Scalia's own irrefutable originalist logic.

Don't you just love that part where he said, "That first phrase about "a well-regulated militia" only confuses things. The correct way to deal with it is to ignore it (as the current Scalia-led majority on the court happily does)." For me, that just says it all.

9 comments:

Of course the part gun controllers get confused by and ignore is “shall not be infringed”. But, let’s look at the Militia line and the following example with a basic understanding of grammar:

“In order to pay my mortgage, I need to make money.”

Using this guy’s interpretation of the 2nd Amendment, if I don’t have a mortgage, I have no need for money. Who is confused here?

Why do they keep using the Militia argument when SCOTUS says otherwise? And I have never seen a gun control advocate support militias, which means they are against the entire 2nd amendment regardless of interpretation. Keep in mind, if you ever had an interpretation of the 2A where the RKBA is contingent on being in a militia, you’ll have a lot of militias in this country.

Mikeb: Don't you just love that part where he said, "That first phrase about "a well-regulated militia" only confuses things. The correct way to deal with it is to ignore it (as the current Scalia-led majority on the court happily does)." For me, that just says it all.

That's the part that I love, too. Many other anti-gunowner advocates say the same thing -- except that it's not true.

The Heller decision carefully analyzed the militia clause and its exact wording, and redered a decision as to what extent if any it restricted the RKBA. So to claim that the Court "ignored" it is BS.

The Court ALSO addressed what type of "arms" are covered and whether it applies to arms only in existence at the time of writing.

Many anti-gunowner advocates claim that the Court "ignored" those issues as well as the militia clause -- but to make that claim, anti-gunowner advocates have to ignore what was actually written in the Heller decision.

Heyck: "By their very words the Founding Fathers plainly meant to protect the right of every person to own and bear muzzle-loading flintlock arms."

One of the wonderful things about the Heller decision is that the Supreme Court directly addressed those who make the same frivolous argument as Professor Heyck:

“Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35-36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.”

As I posted above, the Heller decision directly addressed the bogus "flintlock only" argument. Yet in presenting himself as an expert critic of the Heller decision, Professor Heyck repeats the "flintlock only" argument with no indication at all that the Court had directly addressed the issue in the decision. The most logical conclusion is that Professor Heyck is presenting himself as an expert critic of the Heller decision...without having read it!

The 2nd Am is a latin/classicist's dream text. The specific sentence, "A well-regulated..." is an ablative absolute, which is why there is so much struggle with how to read it. Contemporary english handles the AbAb as a pure subordinate clause - e.g., 'A being so, then B may follow.' As opposed to the more accurate 'A being a fact, B is necessary.'

In other words, instead of an if/then structure, it is more of a this/then. i.e., it isn't subjunctive. That doesn't mean, however, that the two are not read together; they are, just in a different way. The first part is assumed to move on to the second.

Now, mind you I have my language hat on right now. In my opinion, the second half of the sentence ("...the right of the people...") is modified by the first half (and, by the way, I have always been troubled by all the commas in the text).

But modified HOW is the problem.

In other words, I personally have NO idea whether the right exists because a militia is necessary, or the right exists but the gov't might regulate it anyway, but chooses not to because a militia is necessary.

As far as whether this sheds any light on the collective v. individual right question, I don't have the answer to that. I personally don't think that the reference to 'right of the people' language sheds any light on this, as the same language is used in most of the Ams prohibiting gov intrusion into home and privacy rights, so much of the common law rights in these areas have come into protection as penumbral rights.

The obvious problem being whether the right to K&B outside the militia context is a stand-alone right (i.e., penumbral in nature and thus subject to individual judicial examination) or whether it is already included in the 2nd.

My view is that they are penumbral or at least have come to be viewed that way in light of the clustersnuggle of text that is the 2nd Am.